IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.50107 OF 2015 (GM-FC) BETWEEN:
1. Smt.Sheetal W/o C.G.M.Vishwas, Aged about 33 years, Now residing at Kalasapura Road, Gadag-582101.
2. Kumari Sampada D/o C.G.M.Vishwas, Aged about 9 years, Minor, Now residing at Kalasapura Road, Gadag-582101.
(Minor represented by respondent No.1-Natural guardian) …Petitioners (By Sri Kiran V Ron, Advocate) AND:
1. C.G.M.Vishwas S/o Late H.B.Gangappa, Aged about 37 years, R/o House No.MIG 276, K.H.B. II Stage, ‘F’ Group Kallahalli, Shimoga-577233.
2. Yeswanth Krishna Hanjigi S/o Krishna S.Hanjigi, Aged about 35 years, Businessman, R/o Kalasapur Road, Gadag-582101.
3. Krishna S.Hanjigi S/o Shankrappa Hanjigi, Aged about 50 years, Businessman, R/o Kalasapur Road, Gadag-582101. … Respondents (By Sri R.Gopal, Advocate for R1, R-2 and 3 are served) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated 01.10.2015 passed by the Family Court in Shimoga in Civil Misc.Pet.No.03/2015 vide Annexure-A and etc.
This Writ Petition coming on for Orders this day, the Court made the following:
O R D E R This writ petition is directed against the order dated 01.10.2015 passed by the Family Court, Shivamogga in Civil Misc.No.3/2015 allowing the petition filed by respondent No.1 under Order 47 Rule 1 r/w Sec.114 of C.P.C.
2. Respondent No.1 married petitioner No.1 on 22.05.2005 at Gadag, as per the Hindu Custom and Rights. Out of the wedlock, a daughter was born to the said petitioner No.1 and respondent No.1 on 04.10.2006 at Shivamogga. Ever since the birth of the child, petitioner No.1 was being treated cruelly and on various occasion, she was assaulted by respondent No.1. Petitioner No.1 has left the marital home of respondent No.1 on 18.12.2009 with her daughter Kum.Sampada.
3. Respondent No.1-husband has filed a petition in G and WC No.10/2010 before the Civil Judge (Sr.Dn) at Shivamogga under Sections 7 and 10 of the Guardians and Wards Act, 1890 (the ‘Act’ for short).
4. Later the said petition has been transferred to the Family Court, Shivamogga and the same was renumbered as G and WC No.21/2010.
5. After appearance, the petitioner herein has filed an application in I.A.No.1. By Order dated 19.11.2011, the Family Court has allowed the application filed by the petitioners herein and consequently dismissed the petition, filed by respondent No.1 on the ground that the petition is not maintainable since the Court has no jurisdiction. Subsequently, the husband-respondent No.1 has filed a petition in Civil Misc.No.3/2015 before the Family Court, Shivamogga under Order 47 Rule 1 r/w 114 of the CPC for reviewing the Order dated 19.11.2011. The Family Court by order dated 01.10.2015 has allowed the said petition and restored G and WC No.10/2010.
6. Being aggrieved by the same, the petitioners have filed this writ petition.
7. Sri Kiran.V.Ron, learned counsel appearing for the petitioners submits that the cause of action arose on 18.12.2009 as per pleadings. At the time of filing the petition, the daughter i.e., petitioner No.2- Kum.Samapada was residing with her mother at Gadag. As per the provisions of Section 9 of the Act, the ordinary residence of a minor is the jurisdiction to file a petition. Since, the petition was filed in the year 2010, as on that day, the minor daughter was residing with her mother at Gadag. Therefore, the petition filed by respondent No.1-husband was not maintainable. On consideration of the same, the Family Court has rightly dismissed the petition filed by the husband by allowing application filed by the petitioners herein. The petition filed by the husband under Order 47 Rule 1 of CPC itself is not maintainable. The Family Court has allowed the said petition contrary to the provision of Order 47 Rule 1 of CPC. Hence, he sought for allowing the writ petition.
8. Per Contra, learned counsel for respondent No.1 submits that as per the provisions of Section 9(3) of the Act, the ordinary residence of the minor is Shivamogga. Therefore, the petition filed by the husband before the Family Court, Shivamogga is maintainable. He further contended that as per Section 9(3) of the Act, if a petition filed before the Family Court, Shivamogga is not maintainable, the Court may return the same to the competent Family Court. Therefore, the Family Court considering the petition filed under Order 47 Rule 1 of CPC has rightly allowed the same by restoring G and WC No.10/2010. Therefore, he sought for dismissing the writ petition.
9. It is not in dispute that the husband has filed a petition under Sections 7 and 10 of the Act, for custody of child numbered as G and WC No.10/2010. In that petition, petitioner No.1-wife has filed an application in I.A.No.1 seeking for dismissal of the petition on the ground that the Civil Judge, (Sr.Dn) Shivamogga has no jurisdiction to entertain the petition. After hearing the parties, the Family Court has allowed the said application and consequently dismissed the petition filed by the husband. Subsequently, the husband has filed an application under Order 47 Rule 1 of CPC for reviewing the order of the Family Court. The Family Court has passed the impugned order on 01.10.2015 by restoring the petition filed by the husband in G and WC No.10/2010 under Order 47 Rule 1 of CPC. The Court can review the order only if there is an error apparent on the face of the record. The Court cannot decide the matter on merits in a review petition filed under Order 47 Rule 1 of CPC. In the case on hand, Court has decided the review petition on merits and allowed the petition. Under these circumstances, in the interest of justice, the writ petition is allowed, impugned order dated:01.10.2015 passed in Civil Misc.No.3/2015 is set aside and the order passed by the Family Court dated 19.11.2011 on IA.No.1 in G and WC No. 10/2010 filed by wife under Section 9 of the Act is also set aside and IA.No.1 and G and WC No.10/2010 are restored. The Family Court is directed to decide the IA.No.1 filed by the wife in accordance with law without being influenced by the observations made by this Court and also without being influenced by the earlier order passed by the Family Court.
10. The Family Court is further directed to consider the application IA.No.1 filed by petitioner-wife within 4 weeks from the date of receipt of a copy of this order.
If, the Family Court comes to the conclusion that petition filed by the husband is maintainable, it is directed to decide the main matter within three months from the date of disposal of the said application filed by the wife. If the Court comes to the conclusion that petition is not maintainable the Court may return the petition.
In view of the disposal of this writ petition I.A.No.1/2019 does not survive for consideration.
Sd/- JUDGE rv